A Dangerous Impasse: Rwandan Refugees in Uganda

CITIZENSHIP AND DISPLACEMENT IN THE GREAT LAKES REGION

WORKING PAPER NO. 4 JUNE 2010

International Refugee Rights Initiative

Refugee Law Project Social Science Research Council

CIT IZE N SH IP A N D D ISP LA CE MEN T IN TH E GRE A T L A K E S W O RK IN G P AP E R N O . 4

Background to the Paper

This paper is the result of a co-ordinated effort between staff from the Refugee Law Project (RLP), International Refugee Rights Initiative (IRRI) and the Social Science Research Council (SSRC). The paper was written by Lucy Hovil of IRRI with input from Moses Chrispus Okello of RLP and Deirdre Clancy of IRRI, particularly on the legal dimensions of the research. The field research was carried out by Joseph Okumu and Maloe Klaassen. Dismas Nkunda and Olivia Bueno of IRRI, and Bill O‘Neill of SSRC reviewed and edited the material. We would like to express our gratitude to the National Council for Science and Technology for permission to conduct the research, and to all those who participated in the study.

Citizenship and Displacement in the Great Lakes Region

Working Paper Series

The paper is the fourth in a series of working papers that form part of a collaborative project between the International Refugee Rights Initiative, the Social Science Research Council and civil society and academic partners in the Great Lakes region. The project seeks to gain a deeper understanding of the linkages between conflicts over citizenship and belonging in the Great Lakes region, and forced displacement. It employs social science research under a human rights framework in order to illuminate how identity affects the experience of the displaced before, during, and after their displacement. The findings are intended to facilitate the development of regional policies that promote social and political re-integration of forced migrants by reconciling differences between socio-cultural identities and national citizenship rights that perpetuate conflict and social exclusion.

The International Refugee Rights Initiative, the Refugee Law Project and the Social Science

Research Council would like to thank the Open Society Institute for its generous support of

this research.

Cover photo: Nakivale settlement, Uganda (M. Klaassen)

CIT IZE N SH IP A N D D ISP LA CE MEN T IN TH E GRE A T L A K E S W O RK IN G P AP E R N O . 4

Contents

Summary and Recommendations ..................................................................................................... 1

Summary ....................................................................................................................................... 1 Recommendations .......................................................................................................................... 5

Background .................................................................................................................................... 11 Rwanda‘s Genocide ...................................................................................................................... 11

The Aftermath of Genocide............................................................................................................ 12 The War Is Over: Time to Return Home .......................................................................................... 14 The Potential for Re-asserting Citizenship: A Framework for Analysis ............................................... 17

The Legal Framework for Repatriation ............................................................................................ 17 Methodology ................................................................................................................................ 21

Current Situation: Under Pressure to Repatriate ............................................................................. 23

Government of Uganda and UNHCR: Creating Push Factors ........................................................... 23 Rwanda: Strongly Promoting Repatriation....................................................................................... 25

Why so Reluctant to Return? .......................................................................................................... 27

Gacaca ........................................................................................................................................ 27 Ibuka: Remembering..................................................................................................................... 31 Anti-Hutu Stereotypes ................................................................................................................... 32

Re-accessing Property .................................................................................................................. 34 Ongoing Political Repression ......................................................................................................... 37

―Genocide Ideology‖: The New Crime ............................................................................................. 38 If You‘re Not in the RPF, You Must Be a Rebel................................................................................ 39 One-sided Justice ......................................................................................................................... 40

Repressive Politics ....................................................................................................................... 41 Turning a Blind Eye – Again .......................................................................................................... 42 Ethnic Polarisation ........................................................................................................................ 43

Citizenship?.................................................................................................................................... 45 Conclusion ..................................................................................................................................... 48 Bibliography ................................................................................................................................... 49

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SUMMARY AND RECOMMENDATIONS

Summary

Sixteen years after the genocide in Rwanda, tens of thousands of refugees remain in exile. Over the past few years these refugees have come under increasing pressure to return to Rwand a: they are an ongoing reminder of ethnic tensions that are supposed to have been addressed, and the Government of Rwanda

has strongly pursued the return of all of its citizens accordingly. The country is enjoying stability and economic growth, so there is no reason for anyone to remain in exile. Yet many continue to resist return.

This paper examines why one group of Rwandan refugees,1 those living in Nakivale settlement in Uganda‘s southwest, refuse to return. 2 The push factors are considerable. Despite the official emphasis on voluntariness, refugees are feeling under considerable pressure from the governments of Uganda and

Rwanda and the United Nations High Commissioner for Refugees (UNHCR) to repatriate, in particular as a result of the announcement of ―deadlines‖ for repatriation.3 Rwandan refugees told of how they have had

their land re-allocated to Congolese refugees, have seen their rations reduced and are no longer allowed access to some social services available to other refugees.4 Many live in constant fear of being forcibly repatriated and some have resorted to hiding their belongings and sleeping in the bush.

So why are they refusing to return? The findings point to a number of reasons, all of which relate in some way to the fact that they believe that if they return to Rwanda they will not be safe, let alone have equal

access to their rights as citizens of the country. Overwhelmingly, the refugees view the current Rwandan government as repressive. There was frequent reference to the fact that dissent in many aspects of public and economic life is not tolerated, and that those who question the regime are subjected to human rights

violations ranging from discrimination in employment to imprisonment and forced disappearance. Specifically, ethnicity is being used as a basis for repression. The findings suggest that the genocide – and

the legacy of guilt, heart-searching and recriminations that have surrounded it – is being used by the Government of Rwanda as a smokescreen for political repression, p articularly through the association of Hutu identity with the genocide. Images of Hutu brutality during the genocide are evoked to mute criticism.

As a result, the accusation of participation in the genocide has become one of the most feared instruments of repression. In particular, refugees fear the gacaca courts, a traditional community level mechanism of

justice that was transformed into a tool for dealing with perpetrators of genocide. While the courts represent a pragmatic and creative response to the overwhelming need for justice, and have achieved this goal in some respects, in practice, according to those interviewed, they are increasingly vulnerable to manipulation

by those seeking to settle personal grudges or as an instrument of government repres sion. Most refugees who had previously tried to return home to Rwanda – including under the 2009 repatriation exercise by

1 The official number s tood at approx imately 18, 000 in November. See Nasra B ishumba, 2009. ―Rwanda: Over 60,000 Locals Are Stil l Refugees within Africa‖, 3 November 2009. http://allafrica.com/stories/200911030118.html (accessed 7 April 2010.) 2 The findings, while specific to Nakivale settlement, point to wider issues relating to Rwandan refugees in Uganda more generally . 3 See, for example, the deadline of July 2009 announced in a joint communiqué of the Tripartite Commission on the Repatriation of Rwandan Refugees in Uganda of April 2009, which was then extended to 31 August. (―Rwanda-Uganda repatriation deadline extended.‖ IRIN, 10 August 2009, Kigali. http://www.irinnews.org/Report.aspx?ReportId=85645 accessed 12 May 2010.) The issuing of deadlines appears contrary to the fundamental principles set out in the Tripartite Agreement signed by the Governments of Rwanda and Uganda and the UNHCR which governs the Commission. That Agreement clearly emphasises the voluntary character of repatriation as a ―fundamental principle‖ and declares that refugees should be able to freely decide on repatriation ―without coerc ion or pressure‖ (article 3). 4 UNHCR has noted that ration reductions have been applied across the board to refugees in Uganda. The perception of the refugees remains, however, that such measures are part of a package of actions taken by the authorities to induce decisions to return.

http://allafrica.com/stories/200911030118.htmlhttp://www.irinnews.org/Report.aspx?ReportId=85645

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UNHCR – recounted having had a negative experience of the gacaca process or government bodies linked

to it. There were stories of being tortured, imprisoned, being released due to lack of evidence and then re -arrested, and of having family members killed.

A number of other mechanisms for invoking guilt for the genocide as a means of repression were also cited, including the operation of the Ibuka victims group,5 genocide remembrance events and the promotion of anti-Hutu stereotypes. Ascription of collective guilt was also seen as a cover for enforcing the

expropriation of Hutu property: the majority of those interviewed who had tried to reclaim land or other property after their initial return had failed. Instead, their land had been taken over by refugees who had fled Rwanda decades earlier and had returned in the aftermath of the genocide. Attempts to access justice

had led to intimidation and exile. Not surprisingly, these refugees are not only reluctant to return home, they are scared.

Despite official rhetoric about the need to move beyond ethnicity and an effective ban on discussion of ethnic distinctives,6 it is clear from the perspective of those reluctant to return home that the question of

identity has remained profoundly polarised in Rwanda. Ongoing repression on the basis of ethnicity continues to feed localised ethnic divisions and create further polarisation. Far from add ressing this root cause of violence current attitudes and approaches promoted by the government are creating a situation of

tension, insecurity and fear. This situation threatens to shatter Rwanda‘s outward peace and prosperity as the cycles of violence based on the manipulation and denial of identity as a source of power remain unbroken.

However, the findings also show that although repression is often manifest in ethnicised terms, the real issue is the fact that there is little space for political oppos ition within Rwanda regardless of ethnicity. While

the genocide and its immediate aftermath might have been the original cause of flight for many, ongoing political repression in Rwanda is not only preventing many refugees from returning, but is generating new

refugees. In fact, almost a quarter of all those interviewed had arrived in Uganda since 2001. This version of the current realities of life in Rwanda suggests a different image from the one that the government has presented to the outside world, and indicates that the promotion of voluntary repatriation needs to proceed

with extreme caution. The findings therefore critique existing assumptions regarding durable solutions for refugees.

Understandably, there is a tendency in situations of mass flight for states to craft solutions to refugee movements in group rather than individual terms.7 As a result it is hardly surprising that an end to hostilities has typically been used as a key indicator that repatriation can take place and that particular groups should

go home. This approach, however, often fails to recognise that war and violence may profoundly reshape a polity and, in the process, create new threats to particular individuals who may continue to require protection as refugees. Most of those interviewed in fact saw themselves not as war refugees but as victims

of a ―war on individuals‖8 by a repressive government. Many had only recently fled into exile – although often for the second or third time.

5 Ibuka, which means ―we should always remember‖ in Kinyarwanda, was officially formed in 1995 as an umbrella organisation for ―surv ivor‖ organisations in Rwanda to address issues of justice, memory, and social and economic problems faced by surv ivors. 6 See for example, Law No. 47/2001 on 18/12//2001 on Prevention, Suppression and Punishment of the Crime of Discrimination and Sectarianism. 7 The refugee system in Africa, through the adoption of the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (hereafter OAU Convention) was constructed to recognise the need to make swift decisions in situations of large scale influx, generally in the context of war and mass v iolence, although it also prov ides for indiv idualised applications for, and determinations relating to, asy lum. 8 Interv iew with refugee man, Nakivale, 19 November 2009.

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The absence of open conflict is therefore not an adequate benchmark against which to promote return. Return must be considered in terms of political openness and factors such as good governance (however that might be defined) and effective systems of justice, mechanisms that are increasingly being promoted

within the ambit of transitional justice. These are more reliable indicators that it is not only safe to return home, but that return will be a genuinely durable solution. Successful repatriation is not about stepping over a border: it is a long term process of negotiated access to human rights protection and is strengthened by

addressing threats to post-conflict recovery and reconstruction. Critical to this negotiation are questions about governmental and societal discrimination, restrictions on

freedom of movement, denial of property rights, access to justice, and exclusion from governance. Ultimately, successful repatriation is about the genuine re -assertion of the bond of citizenship between

citizen and state, permitting the latter to protect the former and the former to engage in dialogue on the nature of the protection required. Without re-establishing the state/citizen bond and the realisation of their full rights as citizens, refugees will continue to resist return – and others who face similar exclusion will

continue to flee. The official policy response to date from the key state and international actors in Uganda has failed to fully

acknowledge the genuine protection concerns that are preventing Rwandan refugees from agreeing to repatriate. Instead, driven by complex political and other pressures, all three actors with protection obligations for this group (Rwanda, Uganda and UNHCR9) have seen fit to jointly and publically declare that

refugee status for Rwandans in Uganda is no ―longer justifiable or necessary‖.10 Policies and practices that restrict refugee rights and livelihoods have consequently been imposed.

However, to date the same authorities have not announced that the corresponding legal determination – invoking the cessation clause – has been made. Such a determination would be the natural companion to

the assessment that refugee status is ―no longer justifiable or necessary‖ and would carry clear legal consequences (for instance access to the procedures at Ugandan law whereby refugees could formally and transparently challenge a determination that refugee status should cease). At the same time, the

appropriate alternative – continued full enjoyment of refugee status as an effective bridge to the three durable solutions – appears in practice and in policy to have been disingenuously denied through increasing restrictions on rights and public rhetoric from the Governments of Rwanda and Uganda that

return is the only option. Thus Rwandan refugees in Uganda are caught between a rock and a hard place. The fact that UNHCR‘s comprehensive strategy on Rwandan refugees (often publically referred to as the ‗Roadmap‘) does recognise the need for parallel tracks – engaging all three durable solutions; continued

protection of those in flight; attention to the situation in Rwanda itself; and the consideration of cessation for only specific sub-groups of the population11 – is sadly a reality that is far from the daily experience of Rwandan refugees eking out an existence in Nakivale.

As this report was going to press, a new development has emerged that both increases the level of anxiety

within the community and, at the same time, opens up a window for greater clarity to be achieved with respect to the future of Rwandan refugees in Uganda. On 13 th May 2010, a new communiqué was signed

9 It should be noted that despite its formal witnessing of the various Tripartite Communiqués, UNHCR has indicated that it is extremely

cognisant of the protection concerns raised by Rwandan refugees. It is understood that it has made representations reflecting these in line with its mandate to the s tate parties concerned. 10 Joint Communiqué between the governments of Uganda, the Republic of Rwanda and UNHCR on the Situation of Rwandese Refugees in Uganda, 22 April 2009. 11 See for example, UNHCR and Rwanda seek enduring solution for protracted refugee situations at http://www.unhcr.org/4addd7fd9.html.

http://www.unhcr.org/4addd7fd9.html

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by the parties in the Tripartite Commission which clearly states that ―the status of Rwandan refugees in the

Republic of Uganda shall cease when the cessation clause is invoked by 2010.‖12 The fact that cessation appears to be imminent for all Rwandan refugees, rather than for particular sub-groups with respect to whom the original reason for flight may have been attenuated,13 will inevitably raise alarm among the

refugee community, especially as Rwandan refugees continue to arrive in Uganda in significant numbers. Further, although the same communiqué does note that ―a mechanism will be put in place [...] with the support of UNHCR to address cases of persons with compelling reasons as to why they cannot return to

Rwanda‖, reports that the majority of recent applications for asylum from Rwanda have been rejected are unlikely to contribute to refugee confidence in the process.

In this context, tens of thousands of Rwandan refugees continue to wait in suspense for the looming 31st December 2010 deadline, fearing that if they do not go ―home‖ they will be forcibly repatriated, as has

happened in the past from Uganda and other states in the region. Instead, they are searching desperately for alternative strategies, most often through disappearing from the official radar and pretending to be Ugandan or Congolese. As a result, this group is being denied not just effective national protection, but also

most of the rights concomitant with refugee status, the international protective ―citizenship‖ that is triggered in the absence of national capacity. This is not only unacceptable within the ambit of international protection, but has created a dangerous impasse that needs to be urgently addressed – an impasse that

juxtaposes the rights and safety of refugees against the interests and obligations of states.

12 See Joint Communique of the 8th Tripartite Commission Meeting, 13 May 2010, on file with authors. 13 See for example Article 1 C (5) of the 1951 Refugee Convention.

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Recommendations

The long-term objective of this report is for Rwandan refugees to end their exile and once more become full citizens of a state – either of Rwanda or another state – with all the attendant rights that entails. In the

meantime, it is critical that those who remain in exile, or who continue to flee, be protected. The following recommendations reflect both these long and short-term objectives.

To the Government of Rwanda

Our findings point to a number of macro-level recommendations to the Government of Rwanda that relate to issues of citizenship and identity, and to governance and justice. In the context of Rwanda‘s vehement desire to see the return of its citizens, a process of understanding and negotiation must be undertaken if

effective and sustainable enjoyment of citizenship rights and duties is to be promoted, accepted by refugees and ultimately achieved.

The current political climate in Rwanda is preventing thousands of refugees from returning, despite considerable push factors in their countries of refuge. The findings have demonstrated that there is

a widespread perception that Rwanda continues to be crippled by partisan politics and dangerous prejudice. In particular, it is clear that many Rwandan refugees fear persecution or discriminatory treatment on grounds of their ethnicity or ascribed association with the genocide and subsequent

events if they repatriate. Fear of the gacaca courts is particularly acute in this regard. It is important that allegations that the gacaca process has been manipulated to serve interests other than justice and reconciliation, whether at a local level or as a matter of policy, are taken seriously. It is

therefore critical that Rwanda engage with the genuine concerns expressed by its refugees, open up its political space and allow for full and equal civic and political participation of all its citizens. The conduct of the elections in August 2010 is an opportunity to show the

possibility of broader engagement of Rwanda’s citizens in political life.

The promulgation and reinforcement of singular versions of history in Rwanda, which create ethnically aligned divisions between victims and perpetrators and which do not recognise the complexities of the political and security history of the genocide and its aftermath, only serve to

solidify the prejudice and divisionism that gave rise to the horrific events of 1994. Many Rwandan refugees believe that there is little room for their s tory to be heard at home, in particular those that relate to their desire to seek justice for the killings and disappearance of members of their families,

crimes that may have been committed by persons connected with the current ruling party. The sense that recognition that such crimes occurred is not possible in the current political configuration

creates a perception that they do not have equal access to justice, and do not have a right to enjoy equal citizenship. There is therefore an urgent need for Rwanda to engage in a much more honest appraisal of its history, including the genocide and violence that preceded and

followed it. This must translate into equal access to justice for all regardless of ethnicity or other factors, and the reform of the law and practice related to the current offence of espousing “genocide ideology”, which is not only contrary to Rwanda’s international

human rights obligations, but would seem to exacerbate the ill it purports to treat. 14

14 See, Law No. 18/2008, Law Relating to the Punishment of the Crime of Genocide Ideology adopted 23 July 2008.

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If voluntary repatriation is to be encouraged, the Government of Rwanda must honour its

international human rights obligations, including those within the African human rights system that refer to the rights of returning populations. Article 5 of the Organisation of African Unity (OAU) Convention Governing the Specific Problems of Refugees in Africa (OAU Refugee Convention), for

example, sets outs a framework for voluntary repatriation and ensures that returnees are granted ―the full rights and privileges of nationals of the country.‖ The Government of Rwanda should put in place measures that also fulfil the more detailed undertakings to which it has subscribed in the

various tripartite agreements it has signed relating to the return of its nationals, including: mechanisms for settling disputes relating to the property of returnees; ensuring security and

protection; facilitating full and free monitoring by UNHCR in line with its international responsibilities; and improving the lives of returnees consonant with Rwanda‘s development policy.15

The research demonstrates that property restitution (in particular reacquisition of and access to land) remains a key obstacle to the return of refugees and a threat to the promotion of national

reconciliation. While recognising the complexities inherent in this process, Rwanda should work to enhance the effectiveness and fairness of current systems of land dispute settlement. In this regard, it is recalled that Rwanda has signed and ratified the Great Lakes Protocol on the Property

Rights of Returning Persons, which has been specifically developed for such situations. In fact Rwanda was a leading negotiator and promoter of this Protocol, which establishes the principles

that should govern the recovery of property by displaced persons, creates a legal basis for resolving disputes and provides for legal remedies including compensation. National legislation must be compatible with this Protocol, which provisions are also directly justiciable before

Rwanda‘s courts.

To the Government of Uganda

Uganda‘s Refugees Act 2006 provides the appropriate framework for responding to both the protection needs of Rwandan refugees and state security requirements. Its relevant provisions must be fully

implemented to ensure that Uganda fulfils its national and international oblig ations and avoids exacerbating an extremely fragile protection and security situation.

Refugees are living in daily fear of being forced back to Rwanda. As a result they are being compelled to consider suboptimal survival strategies such as masquerading as Ugandan nationals

or Congolese refugees. This situation serves neither Rwandan and Ugandan state security interests nor the protection of refugees. Ambiguous statements from Ugandan officials and UNHCR have at different times over the last few years contributed to this trajectory of fear. It is

suggested that the Government of Uganda and UNHCR issue a clear statement setting out current Ugandan law and policy in a manner in which it can be clearly and credibly be transmitted to, and absorbed by, the Rwandan refugee population. Such a statement should

clarify that the cessation clauses are currently not being applied; that Rwandans who have refugee status are entitled to remain in Uganda; that there will be no forced return to Rwanda by the

Government of Uganda; and that repatriation is a voluntary option that should only be freely undertaken.

15 See inter alia the more extensive undertaking set out in the Tripartite Agreement agreed between the Democratic Republic of Congo with respect to its Rwandan refugee population earlier this year.

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The Ugandan authorities are entitled to consider the application of the cessation clauses in

Uganda, pursuant to Section 6 of the Ugandan Refugees Act and internatio nal law. Benchmarks should be drawn up to assist in making such determinations, and shared with states of origin, where appropriate. Benchmarks specific to the Rwandan context might also be identified and might

draw on discussions that are understood to be ongoing between UNHCR and Rwanda in the context of developing a comprehensive strategy for Rwanda refugees.

Many Rwandan refugees articulate a fear of return home, and cite incidents which are also credibly reflected in recent independent reports on the human rights situation in Rwanda. In the event of

either a particular or general declaration of cessation, it is vital that refugees are informed that they have the right to assert a continuing need for protection through a clear and transparent procedure. 16 Every Rwandan refugee who wishes to challenge a decision to withdraw

refugee status has a right to do so. Article 39 of the Ugandan Refugees Act which governs procedures for the withdrawal of refugee status necessitates, inter alia, the expert engagement of the Refugee Eligibility Committee, the service of written notice, the opportunity to make written

representations and the availability of an independent appeal. In the light of the May communiqué which indicates that the Government of Uganda does indeed intend to apply cessation to Rwandan refugees from 31st December 2010, it is doubly incumbent that the Government of Uganda and its

partner UNHCR communicate to refugees the context for such a decision and the procedures that will be followed subsequent to any such declaration. This should include information on

whether cessation will be applied to the whole population or to particular sub-groups and the kind of screening mechanisms which will be put in place to identify ongoing protection needs, with attendant safeguards and appropriate opportunities for appeal.

Refugees feel under incredible pressure to return. However, by law refugees may not be forced to return home against their will. This is not only a requirement of national and international law b ut a

practical consideration. Non-voluntary return has in the past resulted in cyclical patterns of return and flight, deeply complicating the humanitarian and security situation in the region. In terms of

legal obligation, policies put in place with the intent of narrowing the freedom of decision-making regarding refugee repatriation can, in certain circumstances, amount to constructive refoulement, a serious violation of the Ugandan Refugees Act, Article 12 of the African Charter on Human and

Peoples Rights (ACHPR) and of course Article 33 of the 1951 Convention. In acute cases it may also constitute indirect mass expulsions of non-nationals as prohibited by Article 12(5) of the ACHPR. 17 Cutting of food rations or the denial of access to land must be based on an assessment

that appropriate alternative means of self sufficiency commensurate with being able to provide for basic needs are available. The Government of Uganda has an obligation to ensure that the ongoing repatriation process is purely voluntary and does not amount to constructive

refoulement.

Considerable political tensions exist in Rwanda. As the country approaches its next national

elections in August 2010 it should be expected that asylum seekers will continue to arrive, as they have increasingly done during the first half of 2010. It is understood that Uganda has received the

largest number of new arrivals of Rwandan refugees in 2010, although it is not clear whether any of

16 Where refugee status may have lapsed further to the operation of the prov isions of Section 25 of the Uga nda Refugees Act, an application may be made for recognition of status under Section 19 of the same Act. 17 African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986, art. 12(5).

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these applications have been successful – in fact there are reports that considerable numbers of

them have been refused. It is important that Rwandan asylum seekers continue to have access to a fair and independent individual status determination which takes into account the current political realties in Rwanda and includes access to an appropriate independent

appeal process as required by Ugandan law.18 The reference in the recent May Tripartite communiqué that the Governments of Uganda and Rwanda have agreed to engage in a ―verification‖ of the ―allegations put across by the asylum seekers and returnees‖ is encouraging in

this regard.

It is noted that in the May communiqué the Governments of Rwanda and Uganda have agreed to

―put in place bilateral mechanisms to facilitate the return of persons not of concern to UNHCR by the end of June 2010.‖ Although the return of rejected asylum seekers is a prerogative of states,

both the circumstances surrounding the return, and the consequences of such return, must be considered not only in terms of obligations under refugee law, but also in terms of constitutional and other international law obligations including those set out in the ACHPR, in particular Articles 5

and 12.

Claims that those who remain outside Rwanda as refugees are either persons who were

responsible for the commission of serious crimes during the genocide in Rwanda or who are engaged in armed activity must be addressed thoroughly and clearly in the interests of security and

protection. Although the majority of those refugees currently in Uganda have been subjected to individual status determinations and have been screened for such case elements, the reality is that the veil of suspicion that lingers over this group is a significant threat to the protection of

the population in general, whether in Rwanda, Uganda or elsewh ere. Such suspicions have been cited both as a major driver for Rwanda‘s insistence on refugee return and as an ongoing security concern on the part of Ugandan officials. They also create a huge weight of uncertainty to

be borne by the refugee population. It may be important, therefore, for a clear statement to be made that determinations regarding exclusion/separation have already been carried out for the majority of the population.

Those persons who have been recognised as refugees further to individualised

determinations (the majority of those interviewed for this research) should be considered to have already been determined as non-excludable and entitled to refugee protection until such time as they freely opt for a durable solution or are

subject to the application of the cessation clauses in line with the requirements and procedures of Ugandan law.

Where refugees have been recognised on a group basis further to Article 25 of the Ugandan Refugees Act, and if the question of exclusion or separation and has not been individually determined, such screening should now be conducted.

18 Screening for exclusion or separation should continue to be conducted for newly arrived asy lum seekers as part of the usual process of refugee status determination, where appropriate. This involves a determination as to whether there are persons who are (1) excludable from refugee status further to Article I(5) of the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Afric a, Article 1F of the 1951 U.N. Convention and Section 5 of the Ugandan Refugees Act; and/or (2) amenable to separation from the refugee population as required by international humanitarian law.

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To the International Community

The situations encountered during the return of some Rwandan refugees to Rwanda should be a matter of

acute concern to the international community. The findings make it clear that there are legitimate reasons for Rwandan refugees refusing to return to Rwanda – and these reasons reflect many of the dynamics that were at play in the pre-genocide context in Rwanda in 1994.

An appropriate policy response to the situation of this group should take as a starting point the

determination of the group to remain despite significant pressure to return.

In a context where asylum seekers continue to arrive from Rwanda and internationally respected

human rights organisations continue to report on serious restrictions on fundamental freedoms in the country, UNCHR, however constrained by the necessity for joint determinations with the states

involved, must refrain from actions or statements which indicate that repatriation is the preferred option, even more particularly in the context where, as in Uganda, UNHCR is a partner in refugee status determination.

Building on the comprehensive strategy already developed for Rwandan refugees in the region more generally, UNHCR and the international community in Uganda should adopt an approach that

maintains all three durable solutions as an option, namely repatriation, local integration and resettlement. In particular, there is a need to recognise that resettlement may be required for some

Rwandan refugees in Uganda, including beyond the category of emergency protection need. UNHCR has supported resettlement of Rwanda refugees from Uganda on a case by case basis over the last few years.

UNHCR and other international actors engaged with the provision of assistance and protection to Rwandan refugees, such as the World Food Programme, should ensure that any assistance

policies they endorse fully accord with international law and the obligations of their mandates.19 Reduction in, or denial of, food rations and other assistance, where there is no evidence that the

refugees affected have an independent capacity to generate basic support, and where it violates inter alia the principle of non-discrimination, is unacceptable, as is the attempt to use such cuts in violation of international law as an inducement to repatriate.

In addition to any clarification made by the Government of Uganda, the international community through UNHCR should make appropriate statements clarifying that the cessation clause does not

currently apply; that repatriation must be undertaken voluntarily; and that persons who assert a continuing fear of persecution, including post any declaration of cessation, will not be required to return to Rwanda without thorough consideration of their claim.

In light of the above, regional states (through, for example, the framework of the International

Conference on the Great Lakes Programme of Action on Humanitarian, Social and Environmental Issues)20 should support an assessment exercise aimed at establishing on-going protection and security concerns relating to Rwandan refugees in the region. While recognising the considerable

19 It is understood that UNHCR has indicated to the Government of Uganda that it is concerned about its decision to deny access to land for Rwandan refugees. 20 International Conference on the Great Lakes Region, Pact on Security , Stabili ty and Development in the Great Lakes Region 14 and 15 December 2006.

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challenges involved, UNHCR, related UN agencies and NGOs should embark on continuous

monitoring of the situation of refugees and conditions of returnees in countries of origin.

The international community must recognise the complexities of the relationship between Uganda

and Rwanda and take these into account in considering long term solutions fo r Rwandan refugees. In particular, consideration should be given by states operating resettlement programmes to prioritise Rwandan refugees who cannot return and for whom integration in countries in the region

is not appropriate.21

21 In October 2001 for example UNHCR assisted in resettlement of persons (political opponents) with respect to whom the Defence Ministers of Uganda and Rwanda had agreed should be resettle in a third country . IRIN, ―RWANDA -UGANDA: Uganda, Rwanda Defence Ministers Pledge to Resolve Conflic ts Amiably ,‖ 30 October 2001.

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BACKGROUND

Rwanda’s Genocide

It would be impossible to exaggerate the horrors of genocide. The 1994 genocide in Rwanda was ferocious, ugly and appalled the world – although too late for approximately 800,000 people. It stands as a defining moment for everyone concerned with Rwanda, Africa and international collective obligations more

generally, and raised serious questions around issues of justice, human rights, and the role and capability of the international community to enforce basic shared values.22 Sixteen years later, its ramifications continue to be felt throughout the region.

The genocide, which began on 6 April 1994, was sparked off by the shooting down of the plane carrying the then President Habyarimana. During the course of the next 100 days, almost a million people were killed in

an attempt by an extremist Hutu minority to exterminate Tutsis and ―moderate Hutu‖. It followed a four-year civil war during which related violence had killed thousands and displaced hundreds of thousands more,

mainly Hutu. 23 The genocide ended with the military victory of the Rwandan Patriotic Front (RPF), a rebel group founded by Rwandan exiles based primarily in Uganda. The RPF‘s commander, Paul Kagame, now serves as Rwanda's president.

The genocide was the conclusion of decades of political systems that increasingly polarised identities and imbued them with considerable political, economic and social salience.24 The benefits of hindsight show it

as a history stacked against the equitable and democratic realisation of rights regardless of ethnicity. Tutsis – or specifically two Tutsi clans who had a monopoly on power25 – were the main beneficiaries under Belgium‘s unjust colonial rule, which had instituted a system of rigid ethnic classification, requiring, for

example, that identity documents state ethnicity.26

In the late 1950s and early 1960s, colonialism ended with a social revolution and a Hutu overthrow of the ―Tutsi oligarchy‖. Rwanda became a republic ―with the acquiescence, if not connivance, of the departing colonisers‖.27 Hundreds of Tutsis were killed in this period, creating a major wave of refugees. Various

attempts by Tutsi-aligned groups to invade from neighbouring Uganda and Tanzania failed, leading to more killings in the 1970s. By the early 1990s, approximately 100,000 Tutsis were thought to have fled.28 Then in 1990, the RPF invaded Rwanda from Uganda. The ensuing conflict increased pressure for a negotiated

settlement, and in 1993 President Habyarimana signed a power-sharing agreement with the RPF,

22 P. Uvin, 2001. ―Reading the Rwandan Genocide.‖ The International Studies Review, 3(3) p. 75-99, Fall, p. 76. 23 Ibid, p. 75. 24 This paper does not try to offer an overv iew of the deeply complex historical factors that led to the genocide – many of which continue to be hotly contested both within Rwanda and outs ide. 25 G. Prunier, 1995. The Rwanda Crisis 1959 – 1994. History of a Genocide. London: Hurst & Company. 26 There has been considerable debate over the source and nature of ethnic div isions between Hutu and Tuts i in Rwanda. Two extreme interpretations are commonly proffered: the essentialis t interpretation, which is the official Hutu discourse, and the social-constructiv ist interpretation favoured by the current Tutsi-dominated government. Uvin points to a more nuanced analysis in which Hutu and Tutsi have different his torical origins – the colonisers did not invent them from nothing – but the meaning of these categorisations have changed over time and taken on different significance, becoming more rigid during colonialism and increasingly linked to inequalities of power and opportunity . In post-colonial Rwanda, such differences became increasingly entrenched through v iolence. (P. Uvin, 2001, p. 78.) 27 P. Uvin , 1997.‖ Prejudice, Crisis, and Genocide in Rwanda.‖ African Studies Review, 40(2) p. 91 – 115, September, p. 96. 28 Ibid.

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ostensibly ending the war. However, the power sharing agreement not only failed to resolve conflict, but

inadvertently exacerbated it: neither Hutu hardliners nor the RPF had any interest in observing the accord.29 Although responsibility for the shooting down of Habyarimana‘s plane remains hotly contested, what is

clear is that the president‘s death set the genocide in motion30 – a genocide that had been carefully planned and was meticulously executed.31 Representatives of the state existed all over the country 32 which created the structure that allowed genocide to be unleashed with such brutal efficiency, allowing large numbers of

perpetrators and a maximum number of victims. Consequently, Rwanda‘s history is one of polarisation and unequal citizenship articulated in ethnic terms,

which continues to haunt Rwanda to this day. Indeed, while Rwanda‘s achievements in the aftermath of the genocide are substantial, there is growing unease with the image presented to the outside world of a

country that has made a remarkable recovery. In reality many Rwandans continue to feel excluded from – and threatened by – the political and social processes in their country.33 Of particular concern is the way in which the government has used the genocide to monopolise and consolidate state authority by pro moting a

corporate view of ethnicity that sees all Hutus labelled génocidaires,34 and continues to use the threat of future genocide as an excuse for silencing opposition.

The Aftermath of Genocide

In the wake of the genocide, more than two million people fled from Rwanda to neighbouring countries in possibly the largest mass exodus in Africa‘s history.35 The international community‘s response was chaotic

at best and culpable at worst as it failed to take cognisance of the presence of génocidaires and those intent on generating additional violence among the civilian population. Despite the exclusion clauses set out

in the two principle Refugee Conventions36 that prohibit individuals who have committed serious crimes

29 The former felt excluded from the settlement and the latter was unwilling to share power in any meaningful way. M. Mamdani, 2007. ―The Politics of Naming: Genocide, Civ il War, Insurgency‖. London Review of Books, 8 March. http://www.norman-paech.de/uploads/media/LRB_Mamdani_The_Politics_of_Naming.pdf (accessed 1 April 2010). 30 It goes without say ing that there continues to be much controversy regarding who shot down the plane carry ing President Habyarimana. Blame has often been directed at the current government. However, the recent arrest in France of the former president‘s wife, Agathe Habyarimana, on a seven-count international arrest warrant issued by the Rwandan government, charged with genocide, complicity in genocide, conspiracy to commit genocide, creation of a criminal gang, murder and conspiracy to commit murder, extermination, and public incitement to commit genocide, reflects, in part, the Government of Rwanda‘s assertion that Hutu hardliners were responsible. http://www.newyorker.com/online/blogs/newsdesk/2010/03/the-arrest-of-madame-agathe.html#ixzz0nbKEuYGf 31 As Prunier says, it was premeditated act of political mass murder, not a spontaneous outpouring of primordial ethnic hatred as widely portrayed in the media (Prunier, 1995.) Likewise Uvin asserts that the idea of ―weak‖ states that is so often applied within Africa did not apply in Rwanda on the basis of the fact the government, in needing to assert its legitimacy, carried out extensive ―state building‖. (Uvin, 1997, p. 97.) 32 Ibid, p. 98. 33 A report commiss ioned by the Commonwealth Human Rights Initiative to assess Rwanda‘s eligibil ity to join the Commonwealth talks of how ―[the government] uses the constitution opportunis tically as a facade, which hides the exclusionary and repressive nature of the regime; relies on power structures that sometimes run parallel to, and sometimes cross-cuts, the formal government; and in which the army plays a central role... Rwanda has relied heavily for its revenue... on the plunder of the mineral resources of the DRC – and extraordinarily generous development assistance … The RPF has used an extraordinary amount of v iolence, domestically and internationally , in the pursuit of i ts illegitimate aims. It is responsible for kill ing almost 500,000 persons, whether citizens or not, and is responsible for the deaths of many times more through displacement, malnutrition and hunger.‖ (―Rwanda‘s Application for Membership of the Commonwealth: Report and Recommendations of the Commonwealth Human Rights Initiative.‖ August 2009.) http://www.humanrightsinitiative.org/publications/hradvocacy/rwanda's_application_for_membership_of_the_commonwealth.pdf (accessed 10 April 2010). 34 C. Newbury, 1998. ―Ethnic ity and the Politics of History in Rwanda.‖ Africa Today, 45(1) p. 7, January -March. Indeed, in a 2008 amendment to the Rwandan constitution, the genocide was defined specifically as a ―genocide of Tutsis.‖ See articles 14 and 51, emphasis added. 35 The Lawyers Committee for Human Rights, 2002. Refugees, Rebels and the Quest for Justice. 36 Article 1F (a) to (e) of the 1951 United Nations Convention relating to the Status of Refugees and Article I(5) of the 1969 OAU Convention. For a full legal analysis see Lawyers Committee for Human Rights, 2002.

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from being considered refugees, little action was taken to screen the fleeing refugees and to generate

security in the camps. Instead, the former Rwandan armed forces, the Forces Armées Rwandaises (FAR), were able to regroup and restructure within the camps to devastating effect.37 This failure to distinguish génocidaires from genuine refugees triggered a series of actions and assumptions that sent shock waves

throughout the region that continue to be felt today.38 Most notorious were the events of September 1996 in which thousands of refugees were slaughtered in the

camps on the Rwanda-Democratic Republic of Congo (DRC) 39 border following an invasion by the Rwandan army and their Congolese allies, on the pretext of rooting out génocidaires. 40 The ongoing conflict in eastern DRC is in part a legacy of this inaction and remains inextricably tied to the genocide and its

aftermath. 41 Following the attacks on the camps, hundreds of thousands of Rwandans returned home while others disappeared further into Congo. This mass return allowed for other states in the region to push

Rwandans out, including approximately 500,000 from Tanzania in 1996. 42 Rwandan Hutus who fled following the genocide ―return as refugees, humbled and humiliated, because

they are collectively charged with the heinous crime of genocide.‖43 As Lemarchand says, ―[n]othing is more specious than the argument that after the destruction of the refugee camps [in the Democratic Republic of the Congo] in November 1996, and the return perhaps of as many as half a million refugees to Rwanda, the

only Hutu left behind were the génocidaires.‖44 The failure by states of asylum to screen refugee populations and bring génocidaires in their midst to justice has only exacerbated the ascription of guilt those who remain in exile and undermined the capacity of ne ighbouring states to challenge this notion.

Today, images of Hutu brutality during the genocide are evoked to promote collective assumptions of guilt and to mute criticism. The sheer scale of death in Rwanda in 1994 is s taggering, with approximately three

quarters of the registered Tutsi population in Rwanda killed during the genocide.45 Harder to ascertain are the numbers of those involved in the carrying out the killings as statistics remain highly contested and

nearly impossible to evaluate. Estimates advanced by government officials have been as high as 3 million,46 although Straus estimates between 175,000 and 210,000 perpetrators arguing that most of the killing was done by 10% of génocidaires.47 Ascertaining the numbers of those who were killed in the

37 Ibid. 38 The extent to which génocidaires were not dis tinguished from refugees also led to a major shift within the humanitarian es tablishment, with growing awareness of the political ramifications of humanitarian action as the concept of the passive ―good‖ refugee without agency or political intention began to be challenged. It was recognised that humanitarian action carried out without corresponding attention to justice and international humanitarian law obligations could create the context for situations of massive v iolations of human rights. 39 Then called Zaire. 40 Uv in, 2001, p. 75. 41 For a detailed overv iew of conflic t in eastern DRC‘s North Kivu prov ince, see I nternational Refugee Rights Initiative and Social Science Research Council, 2010. ―Who Belongs Where? Conflict, Displacement, Land and Identity in North Kivu, Democratic Republic of Congo ”, March. 42 For a description of the operation, see Beth Elise Whitaker, ―Changing Priorities in Refugee Protection: The Rwandan Repatria tion from Tanzania,‖ UNHCR New Issues in Refugee Research, Working Paper No. 53, February 2002. 43 C. Fisiy , 1998. ―Of Journeys and Border Crossings: Return of Refugees, Identity , and Reconstruction in Rwanda.‖ African Studies Review, 41(1) p. 17-28, April. 44 R. Lemarchand, 1998. ―Genocide in the Great Lakes: Which Genocide? Whose Genocide?‖ African Studies Review, 41(1): 3 – 6, April, p. 14. 45 Alison Des Forges, 1999. Leave None To Tell The Story: Genocide in Rwanda. Paris and New York: Human Rights Watch and International Federation of Human Rights. 46 Straus talks about how this number was claimed by a number of senior government officials in the aftermath of the genocide. H e also sites similar claims made to Philip Gourev itch, 1998, in We Wish to Inform You that Tomorrow We Will Be Killed with Our Families: Stories from Rwanda.( New York: Farrar Straus and Giroux, p 244.) See Scott Straus, 2004, ―How many perpetrators were there in the Rwandan Patriotic Front? An Estimate.‖ Journal of Genocide Research, vol. 6, no. 1, pp. 85 – 98. 47 Straus, 2004. This is also cited in René Lemarchand, ―Rwanda: The S tate of Research‖, 2007. Online Encyclopaedia of Mass Violence, November, p. 12. http://www.massviolence.org/Article?id_article=51 (accessed 25 February 2010).

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aftermath of the genocide is likewise fraught. Gersony, in an unpublished report for the UN in 1994,

concluded that between 25,000 and 45,000 Rwandans were killed by the RPF in the aftermath of the genocide.48 The report, which had been commissioned in order to encourage Rwandan refugees to return, was quickly hushed up as the findings were clearly going to have the opposite effect. Regardless of the

exact figures, however, of key importance with regards to the return of refugees – who are mainly Hutu – is both the tendency of the RPF to inflate the numbers of those involved in the genocide, and the fact that the RPF has never anywhere been held accountable for its actions – whether within Rwanda or in DRC

(although there have been some domestic prosecutions).49 Even the International Criminal Tribunal for Rwanda (ICTR)50 has, under the watch of various prosecutors, investigated but failed to prosecute the RPF for any of the atrocities committed.51

The War Is Over: Time to Return Home

Official rhetoric claims that all is well in Rwanda, pointing to significant recovery since the genocide. Since 1994, Rwanda‘s per capita gross domestic product has almost tripled, education and health systems have

improved dramatically, tourism is booming and there is broadband internet connection throughout much of the country. Kigali, its capital, gives all the appearance of orderliness and progress, and is home to the only parliament in the world with more women than men. 52 Over the past decade, the international community,

heartened by rapid economic development and riddled with guilt for their inaction during the genocide, has thrown its support behind President Kagame‘s government, evidenced by its recent acceptance into the group of Commonwealth states. In this official version of life in Rwanda, there is no reason for anyone to

remain in exile. However, although many Rwandans have returned home, there continue to be significant numbers who are

reluctant to do so. By the end of 2003, 80,000 registered Rwandans remained in exile,53 a number that had only reduced to 63,441 by 2009 according to Rwanda‘s Ministry of Local Government (MINALOC), with the greatest number in Uganda.54 If unregistered exiles were to be included the numbers would be far higher. In

March and April 2010 alone, for example, 1,312 officially recognised asylum seekers arrived in Uganda, as Rwandans continue to flee the country.55

48 The report, which had been commissioned in order to encourage Rwandan refugees to return, was quickly hushed up as the findings were clearly going to have the opposite effect. (Des Forges, 1999.) 49 Further to the transfer of the case from the ICTR, four Rwandan military officers were charged with war crimes in Rwanda in June 2008 for the killing of 15 civ ilians, of which 13 were clergy. This is the only case involv ing charges of war crimes against RPF offic ers, despite estimates by the UN that between 25,000 and 45,000 persons were killed by the RPF in 1994 – a figure that is only likely to be conservative. (Human Rights Watch, Country Report, 2009). At least 32 RPF members have been prosecuted for their conduct during 1994 but that most of those convicted were ordinary soldiers of lower ranks and received relatively lenient punishments. (" Law and Reality : Progress in Judicial Reform in Rwanda," Human Rights Watch July 2008.) 50 The ICTR was established in November 1994 by the United Nations Security Council (UNSC) at the behest of the Rwandan government to investigate and prosecute those alleged to have committed genocide, crimes against humanity , and v iolations of Article 3 Common to the Geneva Conventions and its additional Protocol II, either by commission or omission. 51 The ICTR Prosecutor has however transferred to Rwanda at least one case involv ing charges relating to serious crimes by the RPF. 52 Philip Gourev itch, 2009. ―The Life After: Fifteen years after the genocide in Rwanda, the reconcil iation defies expectations.‖ The New Yorker, May 4. 53 By the end of 2008, there were 77,240 regis tered Rwandan refugees in neighbouring African countries. See World Refugee Survey , US Committee for Refugees, 2009. http://www.refugees.org/FTP/WRS09PDFS/RefuandAsylumseek.pdf (accessed 1 March 2010). 54 Nasra Bishumba, 2009. ―Rwanda: Over 60,000 Locals Are Sti ll Refugees Within Africa‖, 3 November 2009. http://allafrica.com/stories/200911030118.html (accessed 7 April 2010). The numbers vary with Uganda leading with 17,291 refugees, followed by the Democratic Republic of Congo with 17,014, Congo Brazaville 6,922, Zambia 5,098, Malawi with 4,453 and Zimbabwe with 3,077, Kenya has 2,437 refugees, South Africa with 2,114, Cameroon 1,438, Togo 902, Mozambique with 612 and 607 l ive in Benin. 55 Arrivals have also been noted elsewhere in the region, for example in Burundi in late 2009. ―Over one mill ion Rwandan refugees face forced repatriation from Uganda.‖ http://english.souslemanguier.com/nouvelles/news.asp?id=11&pays=290&idnews=23698 (accessed 17 May 2010).

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Meanwhile, and despite the reality of new displacement, there has been an intensive effort by the Government of Rwanda and the international community to repatriate all Rwandans, motivated by both a general understanding of repatriation as the most favourable solution and a strong desire on the part of

Rwandan authorities to repatriate its nationals. Indeed, over the past decades, repatriation has been pushed globally as the best of the three durable solutions to displacement, viewed as a tidy way of returning everyone to their ―right‖ place. While displacement sheds light on the failure of the state, the

ability for people to return to their former abodes is seen as evidence that such failures have been addressed. Unfortunately, the displaced are all too often pushed or forced to return home even when their circumstances have not qualitatively changed.56

Rwandan refugees are no exception to this experience – although a striking feature of this particular

repatriation process is the extent to which the Rwandan government itself has aggressively promoted the return of all i ts citizens.57 There are a number of reasons for this, including most notably security fears and a concern for the country‘s public image. In the case of the former, and as President Kagame knows only

too well, nationals outside of their country can be a political liability at best and a security threat at worst. Some are also assumed to be génocidaires who should be brought to justice. In the context of his own experience of political and military organisation in exile – the RPF, the force led by President Kagame to

fight his way back into Rwanda, was formed by exiles in Uganda – President Kagame sees all too clearly the need, inter alia, to prevent rebellion brewing from outside of the country. The political role played by refugees – including in forcing changes of government – is a motif of African history. It is one of the reasons

why the 1969 OAU Refugee Convention includes specific restrictions on political and other rights of refugees, and recognises that notwithstanding the ―peaceful and humanitarian‖ nature of asylum‖ 58 refugee populations may constitute a ―threat‖ to the host or other states.59

Further, and given the ongoing failure of asylum states to distinguish génocidaires and others who do not

deserve protection as refugees, from those who are entitled to refugee status, the Government of Rwanda‘s call for refugees to return has become somewhat embroiled in its demand for governments in the region to hand over suspected génocidaires. These apprehensions have, in turn, created a parallel

discourse implying that those who do not return are resisting because they fear justice. This rhetoric advances the notion that there is no legitimate reason not to return. As Rwanda‘s Minister for Local Government, Christopher Bazivamo, is reported to have said, ―The Rwandan government [has] proved its

worth through its good governance and is ready to see all Rwandans living as refugees in other countries return back home. Rwanda has achieved maximum security, and this obviously guarantees peace for everyone. We are having Americans, Europeans and other nationals applying for Rwandan citizenship, why

should our people not relinquish their refugee status and come home?"60

56 As Pottier comments, ―refugees fear and ‗know‘ that it is camp conditions rather than an informed reading of the region‘s pol i tical scene which dictates UNHCR‘s disposition v is-à-v is repatriation.‖ J. Pottier, 1996. ―Relief and Repatriation: Views by Rwandan Refugees; Lessons for Humanitarian Aid Workers.‖ African Affairs, 95(380) p. 403-429, July , p. 423. 57 The situation prov ides an interesting contrast to the current gov ernment in Burundi which, while welcoming the return of its citizens, has also pushed for alternatives to be found in a context in which there is a chronic shortage of land. See IRRI, Rema and SSRC, 2009. ―‘Two People Can‘t Share the Same Pair of Shoes: Citizenship, Land and the Return of Refugees to Burundi.‖ Citizenship and Displacement in the Great Lakes Region, Working Paper no. 2, November. 58 Article II(2) of the OAU Convention is quite clear in this regard, stating that, ―the grant of asy lum to refugees is a peaceful and humanitarian act, and shall not be regarded as an unfriendly act by any member State.‖ 59 Of course a number of such rights restrictions may no longer be permissible in the context of the growth since 1969 of African human rights protections, in particular those enshrined in the African Charter on Human and Peoples Rights. 60 Nasra Bishumba, 2009. ―Rwanda: Over 60,000 Locals Are Still Refugees Within Africa,‖ 3 November 2009. http://allafrica.com/stories/200911030118.html (accessed 7 April 2010).

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Outside of Rwanda, the timeliness of the repatriation effort has been little questioned by states. Since 2002,

tripartite agreements have been signed throughout the region,61 reflecting a policy shift on the part of UNHCR from facilitating return to actively promoting it.62 Governments hosting Rwandan refugees, facing resource constraints and concerned about security risks, have been all too happy to oblige. Meanwhile the

international community, consumed with guilt for its inaction and incompetence during and in the aftermath of the genocide, has also been complicit in promoting repatriation. Despite UNHCR‘s official recognition that a regime change in a country ―may not always produce a complete change in the attitude of the

population, nor, in view of his or her past experiences, in the mind of the refugee,‖ 63 little has been done publically to examine the extent to which this is the case in Rwanda and what the implications might be of such an assessment for the formal promotion of repatriation as the preferred durable solution for Rwandan

refugees.64 Inevitably, this approach has translated into ever decreasing protection for Rwandan refugees.

In order to end the process once and for all, Kigali has been increasingly pushing for the invocation of cessation – a mechanism within refugee law that allows for a determination that a refugee is no longer in need of international protection – arguing that the conditions in Rwanda that led to mass exodus have

changed in a fundamental, durable and effective way. Despite the fact that invocation of the cessation clauses is ultimately a matter for the host country (of course where group cessation is declared that decision will also involve consultations between UNHCR and both the host country and country of asylum),

it has actively been discussed and promoted by Rwanda within the tripartite mechanisms and the Rwandan Minister of Local Government recently said that the cessation clause will be implemented at the end of 2011. 65 Not surprisingly, as a result, given the geopolitical context, the involvement of the key international

actors in the return process has been fraught and highly controversial.66 Therefore with neighbouring countries reluctant to offer Rwandans the opportunity to apply for citizenship,67

asylum under threat, and with resettlement all but impossible except in extreme protection emergencies,68 repatriation – and immediate repatriation at that – is the only durable solution which in practice is being

offered to Rwandan refugees.

61 Rwanda has signed tripartite agreements with the UNHCR and Burundi, DR Congo, Malawi, Mozambique, Namibia, Uganda, Zambia and Zimbabwe. 62 Human Rights Firs t, 2004. ―A Decade of Unrest: Unrecognised Refugees in Rwanda and the Future of Protection in the Great Lakes.‖ p. 13. 63 UNHCR Handbook, Voluntary repatriation: international protection. 64 It is noted, at the same time, that one of the four pil lars of UNHCR‘s comprehensive strategy on Rwandan refugees involves consideration of the situation in Rwanda and confidential discussion of possible benchmarks for cessation in terms of changes in that situation. 65 Frank Kanyesigye, 2010. ―Rwandan refugees urged to return home,‖ 29 March 2010, http://www.newtimes.co.rw/index.php?issue=14215&article=27520 (accessed 7 April 2010). UNHCR claims that there has only been a decision to rev isit the question at that time, not an agreement on invocation of the clause. 66 In 1996, for instance, UNHCR and the government of Tanzania issued a joint statement declaring Rwanda ―safe for return‖ and a nnounced that December 31 2006 was the date by which the almost 600,000 Rwandan refugees in the country were expected to go home. When tens of thousands of refugees began to leave the camps to avoid repatriation, the army got involved. As a result, approx imately 500,0 00 Rwandan refugees were forcibly repatriated with the acquiescence of UNHCR. (See Human Rights First, 2004.) 67 As B. Manby notes, ―even where refugees make progress in terms of economic and social integration, there are often no possibi li ties of converting refugee status into permanent res idence and citizenship.‖ (B. Manby, 2009, Struggles for Citizenship in Africa. Zed Books: London and New York.) 68 For instance, on average only approx imately 100 Rwandans have been resettled to the United States annually since 2003. See ―P roposed Refugee Admissions for Fiscal Year 2006.‖ Report to the Congress, Submitted on behalf of the President of the United States to the Committees on the Judic iary United States Senate and United States House of Representatives in fulfilment of the requirements of Section 207(e) (1)-(7) of the Immigration Act, United States Department of State and Department of Homeland Security and Department of Health and Human Serv ices, http://jfs.ohio.gov/refugee/docs/FY% 202006% 20Report% 20to% 20the% 20Congress.pdf (accessed 15 May 2010).

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The Potential for Re-asserting Citizenship: A Framework for Analysis

So what does repatriation mean in this context – a context in which the state, in effect, has expressed hostility towards those in exile, yet is putting enormous pressure on them to return? What are the

implications for refugees‘ ability to return to Rwanda and genuinely re -assert their citizenship? The story of this group of refugees, and many others who have found themselves in similar circumstances – caught in a protracted refugee situation, under immense pressure to return, yet convinced that return would endanger

their safety – makes it clear that debate on repatriation needs to be broadened and reconceived.

Globally, the success of the return process has become narrowly defined: once someone has stepped over the border back into her land of origin, she has successfully repatriated. Repatriation, in effect, is reduced to little more than a formalist process. As a result, the return process is disengaged from the political

implications of an individual‘s capacity to meaningfully (re)assert citizenship, and therefore fails to address root causes of conflict and insecurity, doing little to prevent the possibility of future displacement.69 In order to counteract this stunted view of repatriation, Long has argued for the re -politicisation of the process of

repatriation – or what she refers to as empatriation70 – which creates the conditions for a new relationship between people and state, and offers greater hope for return genuinely to function as a durable solution:

Repatriation involves the re-linking of a refugee to forms of national protection, symbolised through their physical return to their country of origin. A refugee is recognised to have need of international protection not because they are merely displaced, from their country of origin, but because of the

inability — or active unwillingness — of their own national state to provide protection of their fundamental human rights.71

In the context of this standard, the genuine realisation of citizenship, including access to all the rights that are bound up with it, becomes a substantially more robust indicator of genuine empatriation – of the

durability and functionality of return – than mere physical movement across a border (and indeed may not even require the latter). Consequently this paper considers the issue of repatriation for Rwandan refugees within this framework and measures both the success of repatriation, and the legitimacy of the refusal to

repatriate, within this broader context. The absence of such markers of access to citizenship rights raises questions about the legitimacy and durability of repatriation. In Rwanda, where the legitimacy of the state as an entity that is capable of permitting and encouraging the full expression of political and civil rights for

all its citizens is in question, the current concept of ―return‖, which focuses simply on geographical displacement as the primary signifier of a durable solution, is highly suspect.

The Legal Framework for Repatriation

Against the background of Rwandan and Ugandan constitutional and international obligations, the specific

framework for the Uganda/Rwanda repatriation effort is the Tripartite Agreement signed between the governments of Uganda and Rwanda and the UNCHR in July 2003. It is still in force.72 In setting out the legal context for the repatriation effort, the agreement recognises the ―essentially voluntary character‖ of the

69 The case for repatriation to be put into its political context is eloquently articulated by K. Long, 2010. ―Home Alone? A rev iew of the relationship between repatriation, mobili ty and durable solutions for refugees‖. UNHCR Policy Development and Evaluation Serv ice, March. 70 K. Long, 2008. ―State, Nation, Citizen: Rethinking Repatriation.‖ Refugee Studies Centre Working Paper No. 48, Oxford, August, p. 35. 71 Long, 2010, p. 3. As Long also makes clear, whereas return across the border is merely a ―symbol‖ of re-l inking of a refugee to forms of national protection, within this formulation re-empatriation involves a set of processes that can occur even without physical return. 72 Tripartite Agreement between the governments of Uganda and Rwanda and the UNHCR, signed in October 2003.

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repatriation programme, obliges the Government of Uganda to ensure that refugees are able to ―freely

decide‖ on repatriation ―without coercion or pressure‖, and acknowledges that the status of those who do not choose to repatriate will continue to be governed by international protection principles including those set out in the OAU and UN Refugee Conventions (article 3; clause 1).73 The Ugandan tripartite is short on

detail with respect to alternatives to voluntary repatriation, relying simply on general references to principle such as, for example, UNHCR‘s commitment to ―continue to provide international protection to those who do not opt to repatriate‖ (article 5, clause 5).

At the 6th meeting of the Tripartite Commission of the governments of Rwanda and Uganda and UNHCR, held on 22 April 2009, a number of resolutions were adopted with the declared aim of repatriating all

remaining Rwandan refugees from Uganda by 31 July 2009. The communiqué stated ―the retention of refugee status by present Rwandan refugees is no longer justifiab le or necessary.‖74 Despite the obvious

implications of this assertion, the cessation clauses of Uganda's Refugee Act 2006 and the 1969 OAU Convention and 1951 UN Convention were conspicuously not invoked.75 Cessation of refugee status is a mechanism within refugee law that allows for a determination that a refugee is no longer in need of

international protection.76 According to the UN Convention, cessation of refugee status can occur in a variety of situations, including in situations when ―the circumstances in connection with which he [or she] has been recognised as a refugee have ceased to exist.‖77 Cessation can be applied on an individual basis,

or, as is done more frequently, to a group of refugees sharing similar reasons for their original flight. Once the cessation clause is applied to a particular refugee or group of refugees they cease to be refugees and may be returned, even involuntarily, to their home country. It is clear, however, that even if cessation is

declared generally for a particular group of refugees, individuals within the group should be afforded the opportunity to make a case that the particular circumstances of their cases merit continued international protection. This is a legal determination and involves an objective assessment of the situation in Rwanda.78

It has been argued that the omission of discussion of cessation from the communiqué indicated that despite

the rhetoric all parties ―recognise[d] that there remain grounds under which some Rwandans continue to require protection in Uganda.‖79 At the same time, from the perspective of a vulnerable Rwandan refugee population already facing an uncertain future in Uganda the communiqué as a whole may have sounded

like a de facto declaration of cessation. It would have been difficult to otherwise interpret the draconian regime imposed by the communiqué, involving severe restrictions on livelihoods, the declaration of a ―deadline‖ for repatriation and the statement that refugee status is ―no longer justifiable or necessary .‖

In May 2010 another significant, and long feared, milestone was reached for the Rwandan refugee community. Further to a meeting of the Tripartite Commission on May 13 th, a new communiqué was signed

73 UNHCR is identified as the entity specifically responsible for ―verify ing and ascertaining the voluntary character of each re fugee‘s decis ion to repatriate‖ (article 5, clause 1). In terms of reintegration, the government of Rwanda is charged, inter alia, with utilising ―ex isting mechanisms to settle all disputes relating to ownership and enjoyment of property rights of returnees‖ (article 4, clause 5). To ensure implementation of the Agreement a special Tripartite Commission is established charged with operationalising the specifics of the Agreement (article 6). 74 Joint Communiqué between the governments of Uganda, the Republic of Rwanda and UNHCR on the Situation of Rwandese Refugees in Uganda, 22 April 2009. 75 See Article 6 of The Refugees Act, 2006 and Article 4 of the 1969 Convention. 76 Cessation of refugee status is prov ided for in both the 1951 UN Convention and the 1969 OAU Convention – although the basis upon which a declaration of cessation can be made is described in broader terms in the latter Convention. (Article 1C of the 1951 UN Convention and article I(4) of the 1969 OAU Convention.) ion. (Article 1C of the 1951 UN Convention and article I(4) of the 1969 OAU Convention.) 78 As noted in the UNHCR Handbook, ―circumstances‖ in the context of cessation refers to fundamental changes in the country , which can be assumed to remove the basis of the fear of persecution.‖ (UNHCR RSD Handbook, paragraph 135. ) 79 Refugee Law Project, Press Release on Rwandese Repatriation, http://www.refugeelawproject.org/press_releases/rwandan_repatriation.pdf (accessed 24 February 2010).

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by the Governments of Uganda and Rwanda and UNHCR. At the heart of the c ommuniqué was the

statement that ―the status of Rwandan refugees in the Republic of Uganda shall cease when the cessation clause is invoked by 2010.‖80 The communiqué noted at the same time that ―a mechanism‖ would be ―put in place [...] with the support of UNHCR to address cases of persons with compelling reasons as to why

they cannot return to Rwanda‖. In this regard the two Governments agreed to engage in a ―verification‖ of the ―allegations put across by the asylum seekers and returnees‖. At the same time the parties did agree to work together to ensure that ―all Rwandan refugees voluntarily repatriate by 31st December 2010.‖ Finally, it

was reiterated that while in Uganda, Rwandans would not be permitted access to land to cultivate and ―bilateral mechanisms‘ would be put in place ―to facilitate the return of persons not of concern to UNHCR by the end of June 2010.‖

The fact that cessation appears to be imminent for all Rwandan refugees in Uganda, rather than for

particular sub-groups with respect to whom the original reason for flight may have been attenuated,81 is a matter of concern. Rwandan refugees continue to arrive in Uganda in considerable numbers to seek asylum. Further, in the context of reports that many recent applications for asylum from Rwand a may have

been rejected,82 there may be genuine questions from the refugee population about the viability of post cessation protection screening, an issue which must be tackled in order for the process to earn refugee confidence. It would be important that refugees see that the undertaking in the communiqué that the

Governments of Rwanda and Uganda will engage in a ―verification‖ of the allegations made by asylum seekers and returnees—the first and very welcome direct reference to the ongoing concerns of re fugees in a communiqué from the Tripartite Commission—be conducted in a transparent and thorough manner. It is

clear from the research that considerable political tensions exist in Rwanda. As the country approaches its next national elections in August 2010 it should be expected that asylum seekers will continue to arrive, as they have increasingly done during the first half of 2010.

Finally it is understood that there is a significant group of asylum seekers whose applications for asylum

have been rejected. Further to the communiqué this group will, by the end of June, be subject to the imposition of ―bilateral measures‖ to ensure their return. Although the return of rejected asylum seekers is a prerogative of states, both the circumstances surrounding the return, and the consequences of such return,

must be considered not only in terms of obligations under refugee law but also in terms of constitutional and other international law obligations including those set out in the ACHPR, in particular Articles 5 and 12. In particular in terms of adhering to both the Charter and Ugandan administrative law requirements, it is

essential that Rwandan asylum seekers continue to have access to fair and independent individual status determination which takes into account the current political realties in Rwanda and includes access to an appropriate independent appeal process as determined by the Ugandan Refugees Act.

The forced repatriation of any refugee from Uganda who continues to fear persecution upon return to Rwanda involves a contravention of a variety of provisions of the UN and OAU Refugee Conventions.83 In

recognition of this fundamental principle, Article 2 of the July 2003 Tripartite Agreement states that the Contracting Parties ―fully recognise the essentially voluntary character of the solution of voluntary

80 See Joint Communiqué of the 8th Tripartite Commission Meeting, 13 May 2010, on file with authors. 81 It should be noted that consideration of cessation for sub-groups of the population is the approach which it is understood has been suggested in discussions around UNHCR‘s comprehensive strategy for Rwandan refugees more broadly in the region. 82 On May 16th, APA reported, for example, that ―[o]ver 1,312 Rwandan refugees fled to Uganda between April and March this year, claiming political persecution. The refugees, most of whom hail from the Eastern Prov ince, were however denied refugee status‖ See APA, May 16th, 2010, available at http://www.afriqueavenir.org/en/2010/05/16/over-one-million-rwandan-refugees-face-forced-repatriation-from-uganda/. 83 The 1969 OAU Convention, for example, is explicit about the requirement of voluntariness in the context of repatriation. (Art. V(1).)

http://www.afriqueavenir.org/en/2010/05/16/over-one-million-rwandan-refugees-face-forced-repatriation-from-uganda/

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repatriation [...] no Rwandan refugee will be compelled to return against his or her will.‖ 84 In its substance,

as noted above, the Tripartite Agreement appears to have been drafted with the rights of refug ees in mind. Its implementation – including frequent review of the situation of these refugees,85 the imposition of deadlines for return86 and the restrictive conditions in the camps, set against the background of the

questionable human rights situation or ―circumstances‖ in Rwanda – may have set the stage for contravention of the Convention and the Uganda Refugees Act through constructive refoulement. 87 As noted above, the joint communiqué of July 2009 highlights this reality: it notes t